Brandy Melville vs. Shein: When Copying Photos Isn’t Trademark Infringement

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down Patagonia’s trademark lawsuit against drag performer and environmental activist Pattie Gonia. They discuss the trademark claims, the First Amendment defenses, and the broader question of whether filing the lawsuit was the right strategic move. They cover: Why Patagonia is challenging Pattie Gonia’s merchandise and trademark application How the Rogers test and First Amendment protections may apply to expressive personas and related merchandise What the case shows about trademark enforcement, public backlash, and litigation strategy Tune in for a clear look at when trademark enforcement collides with parody, activism, and the First Amendment.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler discuss the court’s ruling, where Brandy Melville’s trademark claims fell short, and whether a different trademark argument could have changed the outcome. They cover: Why the court treated the copied photos as a copyright issue, not a trademark issue What Brandy Melville needed to show to support its trademark claims How brands should think about protecting product images, marketing content, and visual identity online Tune in for a clear look at where copyright protection ends and trademark law begins.

Pepperdine has used the “Waves” name for its athletic teams since 1937. Netflix’s Running Point also features a fictional basketball team called the Waves. In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Tara Sattler break down Pepperdine’s trademark lawsuit against Netflix, the ruling on Netflix’s motion to dismiss, and what the decision says about the Rogers test after Jack Daniel’s v. VIP Products. They cover: Why Pepperdine challenged Netflix’s use of “Waves” How the court viewed the name in an expressive work What the ruling means for the Rogers test after Jack Daniel’s Tune in for a clear look at where trademark law and entertainment branding collide.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Jessica Marlow break down UMG Records v. Last Brand, the lawsuit targeting Quince’s alleged use of unlicensed music across social media marketing. In this episode, they cover: Why platform music libraries do not automatically clear commercial use How influencer briefs, reposts, and “trending audio” can create copyright risk What brands and creators should address in influencer agreements before content goes live For brands, agencies, and influencer marketing teams, this case is a reminder that viral content still needs to be legally cleared. Tune in for a clear look at where music licensing meets influencer marketing, brand control, and copyright liability.

Did the courts just preserve documentary filmmaking as we know it? In this episode of The Briefing, Weintraub Tobin Partner Scott Hervey and Associate Caroline M. Korpiel revisit the Tiger King fair use dispute and break down the Tenth Circuit’s new opinion in Whyte Monkee Productions v. Netflix. In this episode, they cover: Why the original ruling alarmed documentary filmmakers and copyright experts How the Tenth Circuit reconsidered fair use after Warhol v. Goldsmith What this decision means for documentaries, biographical storytelling, and “biographical anchor” fair use Whether you’re a filmmaker, producer, content creator, or IP professional, this episode offers important insight into the future of fair use in documentary storytelling. Watch this episode on our YouTube or listen to the podcast here.

What happens when your AI assistant can act for you, but the platform says no? In this episode of The Briefing, Scott Hervey and Richard D. Buckley, Jr. break down the high-stakes dispute between Amazon and Perplexity AI over AI agents accessing password-protected user accounts. In this episode, they cover: – What “agentic AI” means and how tools like Comet actually function – Why Amazon moved quickly for a preliminary injunction – How the CFAA and California law are being used to challenge AI-driven access Tune in for a clear look at whether platform owners can legally fence off AI agents from interacting with their systems.

Can sending a cease-and-desist letter land you in court across the country? In this episode of The Briefing, Scott Herveyand Richard D. Buckley, Jr. break down a major Eleventh Circuit decision involving the Frida Kahlo brand and the risks tied to aggressive IP enforcement. In this episode, they cover: When cease-and-desist letters cross the line into tortious conduct How the corporate shield doctrine can fail when personal rights are asserted Why the “effects test” can pull IP owners into out-of-state litigation Tune in for a clear look at how a single demand letter can determine where you end up litigating.

Can a five word phrase be worth millions? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down the high stakes trademark dispute between Las Vegas performer Maren Flagg and Taylor Swift over the phrase “The Life of a Showgirl.” In this episode, they cover: – Whether a phrase can function as a protectable trademark or just a descriptive title – How the Rogers test applies to tour names and merchandise – What recent Supreme Court rulings mean for First Amendment defenses in trademark law From concert tours to commercial merch, the line between branding and expression is getting harder to define. Tune in for a clear look at where trademark law meets the First Amendment.

Can you use “March Madness” without getting sued? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Jessica Corpuz break down the NCAA’s lawsuit against DraftKings and the high stakes fight over one of the most recognizable trademarks in sports. In this episode, they cover: What nominative fair use actually means and how courts apply it Why DraftKings says its use of “March Madness” is necessary for bettors How the NCAA argues the use creates false association and brand harm Tune in for a clear look at where trademark law meets sports betting. Watch this episode on our YouTube or listen to the podcast here.

What happens when a failed police raid turns into a music video about lemon poundcake and a $3.9 million lawsuit? In this episode of The Briefing, Scott Hervey and Richard Buckley, Jr. break down the Afroman defamation case, where surveillance footage, satire, and public officials collide under First Amendment law. In this episode, they cover: Why the deputies’ defamation claims failed under the “actual malice” standard How satire and parody shape what counts as a statement of fact Why the lack of an anti-SLAPP law in Ohio changed the entire case strategy Tune in for a clear look at where defamation law meets satire and the First Amendment.